Rape—the most serious sex offense. The essential element of rape is sexual conduct, which means vaginal intercourse between a male and female, anal intercourse, cunnilingus between persons regardless of sex, fellatio, and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Slight penetration is all that is required to complete vaginal or anal intercourse.
(1) How does rape occur?
(a) Generally, rape cannot occur between spouses unless they are living separate and apart from one another.
Example: John and Marie have been married for 15 years. They engage is sex 3 – 4x/week. Marie finds out that John has been cheating on her, and she kicks him out of the house. John moves into an apartment for the next 4 weeks. On week five, Marie invites John over to the house. One thing leads to another, and soon the two of them are hot and heavy. Right before the magic moment, Marie tells John “no,” and that she wants to wait a couple more weeks. John gets angry, tries to coax her, and while on top of her and while she is saying “no,” he has intercourse. Bad move. John’s next move will be to put his clothes on before the police arrive so the neighbors don’t see him being led naked out of the house.
(b) For the purpose of preventing resistance, the offender substantially impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force or deception.
Example: Billy Bob goes out on a date with a girl and when he gets back to her house, she and he have a couple of cocktails. When she isn’t looking, Billy Bob slips the drug Ecstasy into her vodka and grapefruit juice. She becomes relaxed and uninhibited, and she willingly removes her clothes and engages in sexual intercourse with him. Billy Bob thinks he is pretty slick until the police confiscate the glass, have it tested for drugs, and a week later the they show up at Billy Bob’s door with a warrant for his arrest. Billy Bob is no longer slick but sick.
(c) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person (also known as “statutory rape”).
Example: Joe has been seeing Susie for 2 – 3 months and she has led Joe to believe all along that she is 14 years old. She may have even lied and said she was 14. She looks older than twelve. Joe has sexual intercourse with her. He finds out a week later that she is twelve. Darnit! There is no defense of consent when the victim is under thirteen years of age.
(d) The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.
Example: Ramrod meets a very attractive blond at the local pool. She is wearing a hot bikini. Ramrod starts speaking with her and realizes she is slow and her thinking seems impaired. She tells him she is 18 and is graduating from school (Ramrod neglects to find out which school—in this case, it is run by the MCBMRDD). She also advises him she ran in the Special Olympics last year. She tells him she saw a video in school about sex, thinks sex is wonderful, and can hardly wait to experience it. Ramrod tells her the wait is over, and he proceeds to her house where he teaches her all about sexual intercourse. His teaching days are now over, at least outside the prison walls.
(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.
Example: Every red-blooded, human male should know this one. If the average Joe doesn’t know, then he is probably reading this from the prison computer.
Other Sex Offenses (NOTE: This is not a complete list of all the sex offenses and the different methods of commission. A complete listing of the sex offenses is found in Chapter 2907 of the Ohio Revised Code)
- Sexual Battery—similar to Rape because it involves sexual conduct, but acts of commission are of lesser degree.
Example 1: The Jerry Sandusky case. The former PennState football coach was accused of sexually molesting 10 individuals over the course of 15 years. Offender is a teacher or coach at school or institution where the other person, a minor, is enrolled.
Example 2: A guardian, stepparent, custodian, adoptive or natural parent, or person in loco parentis (a person acting as a temporary guardian of the child) of the other person.
Example 3: The offender is a mental health professional, i.e., psychologist, therapist, etc., and the other person is a mental health client or patient of the offender, and the offender induces the other person to submit by falsely claiming that the sexual conduct is necessary for treatment purposes.
Example 4: The other person is confined in a detention facility and the offender is employed by that detention facility (i.e., prisoner and prison guard)
Example 5: The offender is a police officer and is more than two years older than the other person.
- Gross Sexual Imposition—distinguishing key element is the nature of the contact—sexual contact—as opposed to sexual conduct. Sexual contact involves any touching of an erogenous zone of another, including the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. Cannot occur between spouses. Offender can touch other person, cause other person to touch offender, or cause two or more persons to have sexual contact.
Example 1: The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. The amount of force necessary to commit the offense is the subject of much debate. Generally, as long as it can be shown that the other person’s will was overcome by fear or duress, the forcible element of this offense can be established. Since the amount of force necessary for this offense is the same as for rape, it will depend on the age, size and strength of the parties and their relation to each other.
Example 2: For the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or one of the other persons by administering any drug, intoxicant, or controlled substance to the other person secretly, or by force or threat of force, or by deception. This is the same example as in the rape scenario above, except this offense involves sexual contact.
Example 3: The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired due to a mental or physical condition or because of advanced age. The courts have ruled that voluntary intoxication by the other person satisfies the definition of “mental or physical condition.” So, if Jimmy’s date has been drinking all night and she appears noticeably intoxicated, Jimmy can’t take her back to his place and have his way with her. She is substantially impaired and he knows it. She doesn’t have the ability to resist or consent to the groping of her breasts.
Example 4: The other person is less than 13 years of age, whether or not the offender knows the age of the person. Again, this is the same situation in the rape example above, except this involves sexual contact.
Sex Offense Penalties
The penalties range from life imprisonment without parole on the one end of the spectrum (rape of a child under 13 and the offender is convicted of a sexually violent predator specification) to a jail term of up to 30 days (Public Indecency).
Sex Offender Registration Requirements
Almost all sex offenses carry sex offender registration. An exception is Public Indeceny (i.e., masturbating in public). The length of the registration, frequency, and disclosure of information by the offender depends upon the specific sex offense. This information is found in Ohio Rev. Code §2950.01 et seq.